For decades, the judicial doctrine called “Chevron deference” dominated American administrative law. In the aftermath of Chevron’s demise in Loper Bright v. Raimondo, however, a new legal debate is brewing over an 80-year-old judicial precedent: Skidmore v. Swift.

Stemming from the 1984 case Chevron v. Natural Resources Defense Council, Chevron deference required courts to defer to executive agencies’ interpretations of statutes whenever those statutes were ambiguous or silent. The justification for Chevron deference was simple (albeit misguided): The folks that staff administrative agencies are experts in their fields; and federal judges are not; therefore, courts should pipe down and listen to the “expert” interpretations of unclear laws. Under Chevron’s rubric, courts deferred to agencies’ legal interpretations, even though courts—not agencies—were historically responsible for statutory interpretation. That had consequences. Instead of stable regulations based on impartial “expertise,” agency interpretations shifted with fluctuations in presidential politics.

This deferential doctrine died in June. Writing for the majority, Chief Justice John Roberts declared that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA [Administrative Procedure Act] requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry.”

>>> The End of Chevron Deference

What should a careful reader make of that last line?

Chevron deference may be gone, but what about other types of deference to executive-branch interpretations of law? In his Loper Bright majority opinion, the Chief cited another administrative law precedent, Skidmore v. Swift, not once, not twice, but five times. That fact is important. Some attorneys argue that Skidmore creates another—albeit weaker—form of judicial deference.

In Skidmore v. Swift (1944), firemen sued the Swift & Company packing plant in Fort Worth for back wages under the Fair Labor Standards Act (FLSA). Despite spending several nights per week at their fire hall, crew members were paid only for the time that they spent responding to emergency calls. An FLSA Administrator determined that the time the firemen spent waiting did not constitute compensable “work.” Thus, the question before the Court was whether the time that firemen spent on-call was considered “work,” and whether the Court had to accept the FLSA Administrator’s answer.

The Court unanimously held that the time the firemen spent waiting was, in fact, “work.” Critically, the Court also held that “the rulings, interpretations, and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” The weight a judge gives to an administrator’s opinion depends on factors like “the thoroughness evident in its consideration” and “the validity of its reasoning.” In short, executive agencies have the “power to persuade,” but (unlike Chevron) not the “power to control.”

The holding in Skidmore doesn’t look much like a form of deference. After all, the term “deference” colloquially means complying with, submitting to, or preferencing someone else’s opinion. SCOTUS did the opposite—they decided Skidmore by ruling against an Administrator’s interpretation of the FLSA. Nonetheless, some attorneys argue that Skidmore is, in some watered-down sense, a type of deference. Take, for example, an article from the law firm White & Case published on July 1, mere days after the Loper Bright decision.  The firm’s attorneys state that “Courts can still defer to an agency’s statutory ‘interpretation under Skidmore deference.” “Since Chevron deference is overruled,” they argue, “Skidmore deference is once again the standard for judging agency interpretations of statutes.”

In other words, the argument is that Skidmore is diet Chevron. Chevron lite. Chevron’s slightly weaker cousin. But is that claim true? Will Skidmore become a Chevron surrogate in a post-Chevron world? Or does Skidmore only direct judges towards indicia of quality decision-making, ones they would likely consider anyway when assessing the statutory interpretations of administrative agencies? In short, is Skidmore a form of deference or a call for respect?

Deference is probably not the answer to that question. The clear trend within the Roberts Court has been to contract the latitude of agency power, not to expand it. Given that tendency, it makes sense that a more restrained notion of “Skidmore respect” would win out over the more robust notion of “Skidmore deference.”

The best evidence for this comes straight from the oral arguments in Loper Bright v. Raimondo and its sister case, Relentless v. Department of Commerce. With differing degrees of clarity and chutzpah, Justices Brett Kavanaugh, Neil Gorsuch, and Elena Kagan each suggested that Skidmore does not establish a standard of judicial deference.

Kavanaugh initiated the discussion during oral arguments, commenting that “there was reference to Skidmore deference, and I guess I don’t think that’s the right term.” In his opinion, “Skidmore was about the power to persuade, not the power to control.”

Later, Roberts observed that Skidmore is “usually described as a deference doctrine. People talk about Skidmore deference.”

But then Gorsuch chimed in: “That’s never what Skidmore has been understood to mean or said. It said that the persuasiveness of the government's interpretation depends upon the circumstances.”

Even Kagan appeared to agree that Skidmore is not, strictly speaking, a deferential standard: “Skidmore means, if we think you’re right, we'll tell you you’re right. So the idea that Skidmore is going to be a backup once you get rid of Chevron, that Skidmore means anything other than nothing, Skidmore has always meant nothing.”

SCOTUS Justices have been relatively clear: Skidmore calls for respect, not deference. Even Chief Justice Roberts, who used the phrase “Skidmore deference” in oral arguments, abstained from using the same verbiage in the majority opinion of Loper Bright.

>>> Judicial Humility & Reticence in Administrative Law

Still, this apparent agreement among the Justices does not mean that judges and litigators in lower courts won’t try to shoehorn Skidmore into the jurisprudential gap left by Chevron. Much like Cinderella’s stepsisters or OJ’s prosecutors, they will likely try to make things fit. Will government attorneys slowly adjust their litigation strategy? Will more folks appeal to Skidmore deference over time? And will judges on courts like the Ninth Circuit react favorably? Administrative law aficionados have no choice but to wait with bated breath. After all, “respect” is a malleable term, and were judges to give in cheaply to agency interpretations, that could look like deference in everything but name. 

A couple of weeks ago, Robert Iafolla wrote a piece in Bloomberg Law claiming that courts may be moving away from Skidmore. He notes that, from June 28 to July 26, “federal courts didn’t refer to 1944’s Skidmore v. Swift & Co. in 19 of 20 rulings on agency actions that cited Loper Bright.” He used this absence of Skidmore citations to claim that “Loper Bright may have also sidelined that type of deference.”

While he could be proven correct, that judgment is likely premature. Loper Bright was announced only six weeks ago. It is still so close to Chevron’s overruling that it is difficult to know whether (and when) folks will begin to look at Skidmore as a viable Chevron alternative.

If this debate eventually does come to a boil, the Supreme Court may need to further clarify its position on Skidmore jurisprudence. But for now, appellate litigators would be wise to steer clear of deference-based argumentation. To quote Paul Clement, the former Solicitor General who represented Loper Bright Enterprises, “Going forward, the right way to look at it is not Skidmore deference, but Skidmore respect.”